Monday, December 30, 2013

Like Magic

If this be magic, let it be an art
Lawful as eating.

Winter’s Tale, V.3

There I was, Prospero like, threatening to “break my staff, bury it certain fathoms in the earth, and deeper than did ever plummet sound … drown my book” and thereby abandon blogging.  Then, two kind souls immediately stepped up to give me solace. That same day, quite by accident, I found out that a theater in town was offering a one-time screening of the current Royal Shakespeare Production of Richard II, the very play that was among the subjects of my last, somewhat despondent post. But when I tried to buy tickets to the screening, I found that it was sold out—which I saw as even better news than that of the screening itself!
Here was a flurry of signs indicating that affection for things Shakespearean still abounds.  And that sense of magical synchronicity fueled my spirit.
Seeing “signs” and synchronicities in things is a recalcitrant human instinct, even in the most stalwartly skeptical rationalist. We just can’t help ourselves. Because magic feels good. We flock to see the latest Hobbit movie to revel in the fanciful. We seek out coincidences that inject some enchantment into the humdrum. We impose patterns on random events and, in doing so, make the random seem more vital and, paradoxically, more real.  Like Helena in All’s Well That Ends Well, believing that things are written in the stars somehow instills optimism, an irrational fortress against (more sane) feelings of depression:
And ever shall
With true observance seek to eke out that
Wherein toward me my homely stars have fail'd
To equal my great fortune.

Lawyers, by contrast, abjure magic. They do not believe in trusting much of anything to the hands of fate. Every statement is laden with definitions, qualifiers, and seemingly gratuitous synonyms so that no nuance is left to the imagination.

For instance, Lawyer No. 1 says, “Y, please produce any and all documents in your possession, custody, and/or control related to or regarding x, including but not limited to, all documents than mention a,b,c.”  Then, to be sure that nothing is left to the imagination, Lawyer No. 1 notes that “the word ‘document(s)’ means any matter described in Federal Rule of Civil Procedure 34(a) and is used in its customary broad sense and includes all written, typed, printed, recorded or graphic statements, communications or other matter, however produced or reproduced, and whether or not now in existence, in your possession, custody or control, including without limitation:  all writings; emails; studies; analyses, tabulations; evaluations; reports; reviews; agreements; contracts; communications; including intra-company communications; letters or other correspondence; messages; telegrams; telexes; cables; memoranda; records; notes; reports; summaries; sound recordings or transcripts of personal or telephone conversations; meetings; conferences or interviews; telephone toll records; diaries; desk calendars; appointment books; forecasts; accountants' work papers; drawings; graphs; charts; maps; diagrams; blueprints; tables; indices; pictures; photographs; films; phonograph records; tapes; microfilm; microfiche; charges; ledgers; accounts; cost sheets; financial statements or reports; statistical or analytical records; minutes or records of board of directors, committee or other meetings or conferences; reports or summaries of investigations; opinions or reports or summaries of investigations; opinions or reports of consultants; appraisals; reports or summaries of negotiations; books; brochures; pamphlets; circulars; trade letters; press releases; newspaper and magazine clippings; stenographic, handwritten or any other notes; notebooks; projections; working papers; checks, front and back; check stubs or receipts; invoice vouchers; tape data sheets or data processing cards and discs or any other written, recorded, transcribed, punched, taped, filed or graphic matter, however produced or reproduced; and any other document, writing or other data compilation of whatever description, including but not limited to any information contained in any computer although not yet printed out or the memory units containing such data from which information can be obtained or translated into reasonable usable form, and all drafts and non-identical copies of the foregoing.”
You think I exaggerate? Ha!
Moreover, in response, Lawyer No. 2 responds, “Y objects to this request as overly broad, vague, ambiguous, and unduly burdensome.  Y further objects that, in any event, the request is duplicative of documents that must be produced pursuant to Federal Rule of Civil Procedure 26(a).  Y further objects to the extent that this request seeks any documents protected by any applicable privilege, including, but not necessarily limited to, the attorney-client privilege, attorney work-product privilege, the trade secret privilege--” and so forth.
There is no magic whatsoever in drafting either requests for or responses to formal document requests made by one lawyer to another in a lawsuit.  The whole point is to minimize the ability to engage in free association, to proceed based on trust, to hope for the best.

Tuesday, December 24, 2013

O Henry

Henry Bolinbroke, who becomes Henry IV, is featured in three of Shakespeare’s plays, two of which even bear his name. But Henry isn’t the main character in any of these plays. He seems more an instrument of others’ fates—first the fate of Richard II, then of his son, the future Henry V. 

More specifically:

As Henry orchestrates a plan to overthrow the ineffectual, foppish King Richard, Henry is a foil for Richard’s transformation into an eloquent, tragic hero finally capable of keen insights. Only after Henry has laid low the slightly contemptible Richard and he is confined to a prison cell does the latter become a philosopher:

I have been studying how I may compare
This prison where I live unto the world:
And for because the world is populous
And here is not a creature but myself,
I cannot do it; yet I'll hammer it out.
My brain I'll prove the female to my soul,
My soul the father; and these two beget
A generation of still-breeding thoughts,
And these same thoughts people this little world,
In humours like the people of this world,
For no thought is contented.

So insightful now—all thanks to Henry and his machinations. 

Then, in Henry IV Parts 1 & 2, Henry exists to play counterpoint to his son, Prince Hal, whose journey through these two plays is a classic coming-of-age story, which culminates in his super-rousing ascendency in Henry V.  In the plays named after Henry IV, the dad/king spends most of his time on stage anguishing over two distinct forces: the various rebels trying to take the crown away from him and the profligate passions that possess his son and incline young Hal to disdain all that his father believes he is fighting for. When Henry IV finally seems to be getting the upper hand over the rebel forces at least, he falls ill. Then, as he languishes in limbo between life and death, he is affronted by his son who, having had the decency to come home in time to pay his last respects, ends up offending dear old dad by playing dress-up with dad’s crown when Hal thinks dad has drifted off—to sleep or to something more permanent:

My gracious lord! my father!
This sleep is sound indeed, this is a sleep
That from this golden rigol hath divorced
So many English kings. Thy due from me
Is tears and heavy sorrows of the blood,
Which nature, love, and filial tenderness,
Shall, O dear father, pay thee plenteously:
My due from thee is this imperial crown,
Which, as immediate as thy place and blood,
Derives itself to me. Lo, here it sits,
Which God shall guard: and put the world's whole strength
Into one giant arm, it shall not force
This lineal honour from me: this from thee
Will I to mine leave, as 'tis left to me.

After this pretty speech, Hal exits with the crown. And while the speech is pretty and certainly shows some affection for the dying dad, Henry does not hear it.  All he knows is that, when he, who is not dead yet, wakes up, his crown is missing. After he learns that Hal is the one who took it, Henry spends some of his last moments chastising his boy for being in too great a hurry to assume power.  In short, Henry can’t even feel good about the fact that his son may have abandoned his shameful ways at last because the boy also seems a bit too keen to claim the crown that he had, hithertofore, shown so little interest in earning.

Poor Henry. He never catches a break: he overthrows a king only to become the target of others’ plots; he vanquishes his competitors only to fall fatally ill; his prodigal son comes home, only to raid the family jewels. And he feels every irony to the core. In this, he stands for one really profound phenomenon: the elusive nature of pure joy.
Henry gives voice to this profundity just after he learns that the last rebels have finally been overthrown, knowing that his own body is now failing him:

And wherefore should this good news make me sick?
Will fortune never come with both hands full,
But write her fair words still in foulest letters?
She either gives a stomach and no food;
Such are the poor, in health; or else a feast
And takes away the stomach; such are the rich,
That have abundance and enjoy it not.
I should rejoice now at this happy news;
And now my sight fails, and my brain is giddy:
O me! come near me; now I am much ill.
[Part 2, V.4]

“Will Fortune never come with both hands full?!”—with that line, Henry captures something truly poignant about the human condition. How often, just as you attain something for which you have long striven, do you find that you are not quite in a position to enjoy it? That challenge is one reason why the holidays can be peculiarly taxing for grown-ups. Life does not readily permit a person to experience a whole season of unmitigated glee. And the more living one has under one’s belt the harder it is to cabin off the sad stuff just because Santa may be on his way. Henry the foil is the one who gives voice to this terribly real existential frustration: the difficulty of pure, sustained happiness.

Lawyers’ good fortunes, like Henry’s, never come with both hands full.  If you win a big plaintiff’s verdict, you know you will soon be fighting tooth and nail to hang on to some of it as judgment is entered and then as the case is appealed.  When you settle a big case and make a client happy, you realize you have no more work to do.  When you get a new matter in, you realize you will have to cancel the plans you had to take a vacation at long last.  When you finally get the other side to turn over that trove of documents they had been withholding, you then realize you have to dig through thousands or millions of pages of what may prove to be utterly worthless crap. And so forth. It is hard to think of any “happy turn” in litigation that does not have a very palpable down side. For this reason, some might say of lawyers, as Clarence says of Henry: “The incessant care and labour of his mind/ Hath wrought the mure that should confine it in/ So thin that life looks through and will break out.”

That gloomy thought also compels me to acknowledge something. The darkness that has, of late, befallen this blawg has been a source of some distress.  The blessing of ample work has meant very little time to work on this blawg. Therefore, despite an abundance of ideas, I feel I must accept my limitations and make a new new-year’s res simply to post once a month or so—or else let it go.

Meanwhile, I hope that anyone who happens upon this blawg manages a moment or two in the coming year to experience something that always eluded Henry Bolinbroke: unadulterated joy.

Sunday, December 1, 2013

“Lies, damned lies, and statistics”

The popular expression I employ as a title for this post is often invoked to criticize the use and abuse of arguments supported by statistics. The quote has been attributed to various characters, including Mark Twain and Benjamin Disraeli. I do not intend to wade into that debate. I feel confident, however, that Shakespeare is not responsible for the utterance.  I am, however, prompted to say a word about statistics on this blog about Shakespeare and law because of a statistically significant confluence of events in the last 24 hours.  While studying a fairly recent statistical analysis of reversal rates and reasons for those reversals in appeals to the Texas intermediate appellate courts, I was thinking about how my own recent attempt to rely on statistics failed to find a receptive ear. Then I received an informative comment from James S. Ferris on my last post, wherein he refers me to his statistical analyses of Shakespeare’s canon supporting the theory that Edward de Vere, 17th Earl of Oxford, was a likely author of works we attribute to “Shakespeare.”
When do statistics add to rhetorical force and when are they fairly brushed aside?
Among serious-minded people, the value of empirical data is not really subject to debate. Empiricism is the foundation of science; it is an essential tool for helping us break out of our narcissistic bubbles made of mere anecdotal “evidence,” hunches, coincidence, prejudice, and superstition. Statistics—the medium whereby empirical data is rendered accessible—reflect both hard and soft knowledge. Statistics involve hard numbers and yet presume to do no more than capture trends. Statistics permit us to make more informed predictions; but these predictions must always be characterized as reflecting probabilistic, not apodictic, certainty.
Because of the inherent modesty of statistics, someone can always decide to reject even the most damning statistics by concluding that the current situation constitutes an exception to a given statistical trend. And such a decision does not necessarily constitute intellectual dishonesty or cowardice—because part of what makes the science of statistics sound is that statistics do not presume to speak to individual instances. Just because a decision-maker has rejected x claim by y kind of person each and every time x has been presented to him over a multi-year period, that does not mean that the decision to reject this particular y’s x claim on this particular occasion was unfounded.
But if the proffered reasons given for rejecting a particular y’s x claim are not supported by legitimate evidence, then the statistics showing that z routinely rejects x claims from the likes of y should take on heightened significance. That is when statistics should resonate as authoritative.
Therefore, when someone presented with that situation decides to reject y’s x claim and the statistical argument showing that it was not given fair consideration that decision can seem like an exercise of raw power or the product of political preference. And that is certainly a circumstance that Shakespeare understood.
So I end by quoting Harry Hotspur, aka Henry Percy, from Henry IV, Part 1.  Hotspur chides his kinsman, the Earls of Worcester and Northumberland, who, after having played an instrumental role in furthering a political plot, are upset that the man whose ascension they enabled seems to have forgotten to elevate them too now that he holds the reins of power:
Shall it for shame be spoken in these days,
Or fill up chronicles in time to come,
That men of your nobility and power
Did gage them both in an unjust behalf,
As both of you—God pardon it!—have done,
To put down Richard, that sweet lovely rose,
And plant this thorn, this canker, Bolingbroke?
And shall it in more shame be further spoken,
That you are fool'd, discarded and shook off
By him for whom these shames ye underwent?

Hotspur was not surprised by abuses of power or that those who had obtained power unjustly would wield it in unjust ways; but that lack of surprise did not prevent him from railing against it nevertheless.